Can a Juror Follow the Constitutional Principle That He or She is Prohibited From Considering as Evidence Whether the Defendant Testifies at Trial

I’m current in trial in an armed robbery case in the 6th Judicial Circuit Court in Oakland County, Michigan. As we picked the jury last Thursday, a process called voir dire, I delved into an issue that never fails to be an issue in a jury trial. Many people want to hear from the defendant, they want him to her to testify and profess their innocence. In fact, this desire on behalf of some jurors is so extreme that they will candidly admit that even if the judge gives them an instruction that the law prohibits them from considering whether the defendant testifies as evidence…they just cannot follow the law in that regard. I always preface my questions in that area with my truthful experience that I’ve never had a trial when at least one person doesn’t candidly admit that this is their strongly held opinion.

In this particular case, I asked whether this would be the case for any of the prospective jurors and there was a delay of several seconds with no response. I waited…and waited…and waited. Sure enough, as I knew would be the case, a woman in her mid-fifties slowly raised her hand. Thank God for her honesty. It is not easy proclaiming in an open courtroom that you cannot follow the law but it is the truth for more people than have the bravery to admit.

The Fifth Amendment to the Constitution of the United States sets forth the following:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

As it relates to a bench or jury trial, the 5th Amendment stands for the proposition that if the defendant does not testify at trial, that fact, in and of itself, cannot be considered by the trier of fact as evidence of guilt. This is not just a law passed by a legislature or even a citizen’s initiative, this is the Constitution and it’s principle is at the heart of our country’s notion of what is fair and right. An American citizen does not have to prove his or her innocence or do anything at all in their defense. It is the government’s obligation, when it accuses a person of a criminal offense, to prove his or her guilty “beyond a reasonable doubt.” Requiring a defendant to testify or even considering whether the defendant testified is an unconstitutional shifting of the burden that is squarely placed on the prosecutor’s shoulders.

Don’t feel sorry for the government just yet, the burden is not unduly burdensome

Despite the fundamental due process protections the founding fathers (and undoubtedly the founding mothers through the input of their husbands) gave to American citizens, the government still has the advantage…many times the unfair advantage. The truth of the matter is that most jurors assume the defendant is guilty despite the “presumption of innocence.” Notwithstanding the burden of proof being “beyond a reasonable doubt,” many jurors use the custom burden of “do I think he did it” or “does the victim deserve a conviction despite whether or not this particular defendant did it or not.” The less “desirable” or “likable” the defendant is seems to have a direct connection to how high or low the burden tends to be in a case. Needless to say, these are not the burdens that are required under Michigan or American constitutional law. Way too many people (thousands) are wrongfully convicted by juries in America and subsequently proven to be innocent for this not to be true. This is especially true in eye-witness cases because eye-witness testimony is historically unreliable.

What does all this mean?

It means that honesty in the jury selection process is necessary for the system to work at its optimum level. Thank God for the juror in my case that admitted she could not follow the law. I don’t know how this case will work out but thanks to that particular juror who admitted her bias, my client is assured to get a trial that is more fair than he would have otherwise had.

“We will find a way to help you and, most importantly,we are not afraid to win!“